Special Standing Committee

[Mrs. Marion Roe in the Chair]

Adoption and Children Bill

Marion Roe: Good afternoon. I wish you all a happy new year, and I hope that you had a good, relaxing Christmas.Clause 58 Disclosing information to adopted adult

Clause 58 - Disclosing information to adopted adult

Amendment proposed [this day]: No. 235, in page 33, line 23, at end add— 
 '(7) On attaining the age of 18 an adopted adult shall be formally notified by the 
 appropriate adoption agency that he was adopted.'.—[Tim Loughton.]
 Question again proposed, That the amendment be made.

Tim Loughton: Good afternoon, Mrs. Roe, and a happy new year to you. I trust that you have had a restful recess, and that you are ready to throw yourself into the remaining stages of the Bill—there is light at the end of the tunnel at last. Before you arrived this afternoon, we were discussing the intricacies of the Slater family from EastEnders''. I was about to launch into the subject of incest, on which the Minister touched unwittingly when she took us down a strange lane, but we will come back to it later.
 The amendment provides that people should have the right to be told that they were adopted when they reach the age of 18, if they have not already been given that information. The amendment is fairly harmless, but the principle it reflects is an important one, and it seems to have opened up several issues. Earlier, the Minister changed from using the word difficult'' to talking about some sympathy'', and I hope that she has had time over lunch to acquaint herself fully with the implications of the amendment. That is only a few hours less than than we were given to consider some Government amendments before the recess, and she has the benefit of having at her disposal a fleet of officials who are experts on the subject. 
 The Minister's point, which was taken up by the hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd), is not really compensatory. She said that guidance has been issued stating that everyone is entitled to a copy of their birth certificate at 18. That is fine and we all agree with it, but that entitlement is not the same as an entitlement to the information necessary to know that one needs to see one's birth certificate. It is all very well to say that anyone can ask 
 for his birth certificate at the age of 18, but if a person has no reason to doubt his birth parents, he has no cause to seek his birth certificate at that time. 
 How will the Government publicise the entitlement? If the Minister holds it up as an example of access to information, it should be widely publicised. I assume that the publicity will not take the same form as that for winter fuel payments, for example, whereby pensioners will be bombarded with information on how to claim it, if they are so entitled. What do the Government propose to do to publicise the fact that anyone may be entitled to see his birth certificate at the age of 18? 
 The Minister may want to consider further the point that I made shortly before we adjourned for lunch. Private families who have never had any involvement with the legal process or been part of any adoption process, whose children are blood related to the parents with whom they live, are clearly different from families who have adopted children and that relationship has been legitimised by the state through the legal system. 
 I agree with the Minister that we do not want the state to stick its nose into private families' business. Perhaps that is a Burkean principle, as my hon. Friend the Member for Canterbury (Mr. Brazier) claims. It would certainly be contrary to many human rights treaties to which we have alluded. However, we are not talking about the state doing that; we are discussing a situation that the state has manufactured—for want of a better word—through the adoption process. The state has a duty of care to ensure that the manufactured relationship is maintained in everyone's best interests. I dispute the Minister's assertion that we are talking about the state sticking its nose in where it has no business. We are talking about the state monitoring something that it has created by the legal recourses of the adoption process. 
 The Minister said that she thought that the amendment might place onerous duties on adoption agencies. That is rubbish, nonsense, and a red herring.

Meg Munn: Does the hon. Gentleman accept that the practical implications of the amendment are difficult, whatever its principle might be? To contact a young person when he reaches the age of 18, the adoption agency would have to know where he lives, so adoptive parents would be required to notify the adoption agency every time they move. It would be a little strange to expect them to do something so out of the ordinary.

Tim Loughton: I do not agree. If adoption agencies are to perform their role in the adoption process, ensuring that it works and ensuring that the relevant adoption support services are available for as long as they are required, and if we expect adoption agencies to keep full records that will enable adopted people who seek their parentage—or, in some cases, birth parents who seek previously adopted children; the Bill still has many shortcomings on that issue—to do so successfully, it is not a tall order to require them to keep records on when people will reach 18 and to have an idea of where those people are. Furthermore, at the
 age of 14, 15, 16 or 17, a person may have problems in his adoptive family and have recourse to a social services department outside the area in which he was originally adopted. If so, it would be helpful if that department were to have recourse to the original social services department, which could cast more light on that family's problems.
 I do not see what all the fuss is about, especially given the register system. If the hon. Lady would prefer, some means could be used to enact the principle other than the adoption agencies mentioned in the not entirely adequate, but not ghastly, amendment. It is not so onerous a burden whatever body—perhaps an adoption agency—is used, so the fuss is unnecessary. To be told that one is adopted if one has not been told already is a fundamental right. 
 We might return to the incest angle in debate on other parts of the Bill; new clauses might be required. If a person who has turned 18 and become an adult still has no knowledge of the fact that he or she is adopted, there is a possibility—a slim one, although not as slim as one might think—that he or she will strike up a relationship with a young woman or man of similar age living in the area, and for the two of them to turn out to be brother and sister. That is not entirely fanciful. The Committee has received communications from certain people who expressed such fears as mothers. There was one person in particular whose son had been adopted and whose daughter had just turned 18 and was starting to go out with boys of a similar age. The family had not moved away from their original area, and there was a strong chance that the son was still in the area. It is difficult enough getting the information, if it can be acquired, about where a sibling is now residing, but young adults being left to their own devices after they turn 18, not knowing that they are adopted and so being unable to keep at the back of their mind that somebody might just be related to them, opens up all sorts of ghastly possibilities of their unwittingly committing acts that are still offences under the Sexual Offences Act 1956. 
 That is an important aspect and yet another reason why it is essential—and a fundamental right—that people who have not been told before they reach the age of 18 that they were adopted should automatically be told when they reach that age. Of course, the imparting of that information should be accompanied by all the necessary considerations and counselling. 
 The amendment is not probing; it reflects an important principle. The Government's response has been interesting—the Minister has asked for more time to consider the matter, and I hope that she will. On that basis, I will be happy to withdraw the amendment. I hope that the Minister is serious about her undertaking to consider the matter properly, and that she will either make proposals of her own, perhaps on Report, or give solid reasons why our suggestion would not work, perhaps by citing ramifications that have not emerged in our debates. If she repeats her undertakings—the phrases she used ranged from difficult'', to some sympathy'', to consider further'', 
 to a bit of a problem''—I will be happy to withdraw the amendment. None the less, we have had a useful discussion and opened up important new issues relating to some of the Bill's fundamental principles.

Jacqui Smith: Welcome back Mrs. Roe.
 I am happy to repeat the undertaking that I gave only three or four hours ago to consider the amendment in detail and to come back either with proposals or with further thoughts about the difficulties surrounding the issue. Our debate been conducted in a spirit of exploring ideas, which is appropriate to a Special Standing Committee. I hope that I do not sound irritated when I say that it is interesting that some people choose to treat my willingness to consider the various surrounding issues as a vehicle for criticism. 
 I shall not be oversensitive. I repeat my undertaking that the Government will consider the matter in more detail. There are issues and difficulties in terms of both principle and practicality, but I shall, as I said this morning, ensure that before Report and Third Reading, members of the Committee are clear about our views and intentions.

Tim Loughton: I should be relieved that I have not been accused of being mischievous, bad tempered, or even churlish. I am grateful for the Minister's comments. It was not clear from this morning's debate whether she would respond on this matter, but she has now made it absolutely clear that she will. There is no further need to pursue it, so I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Question proposed, That the clause, as amended, stand part of the Bill.

Marion Roe: With this it will be convenient to consider the following: Government amendments Nos. 217 and 232.
 Government new clause 7—Disclosing protected information about adults. 
 Government new clause 8—Disclosing protected information about children.

Jacqui Smith: We now—[Interruption.] I am glad that hon. Members have returned refreshed, keen and enthusiastic after their break. We come now to a significant debate on clause 58 stand part and related Government amendments and new clauses.
 Clause 58 provides for the disclosure of information held by adoption agencies and courts to the adopted person when he reaches the age of 18. Previously, it gave the adopted adult a new right to receive from his adoption agency the same information as his adoptive parents received at the time of the adoption order. Amendment No. 205 provides the adopted adult with a new right to receive from his adoption agency prescribed information that is given to his adoptive parents under new clause 6. It is intended that he will receive the same information as his adoptive parents.
 As now amended, the clause gives the adopted adult the right to receive from his adoption agency information, such as his birth name if he does not already know it, which is necessary for him to obtain a copy of his birth certificate from the Registrar-General. That is the key change, which demonstrates that we have listened and responded to concerns about restricting adopted persons' access to their birth certificates. As I said this morning, an adoption agency that wants to withhold the information that the adopted adult needs to obtain a copy of his birth certificate must now apply to the High Court for an order, and the court will grant such an order only if it is satisfied that the circumstances are exceptional. 
 The clause also gives the adopted adult the right to request from the court a copy of a prescribed document or prescribed order that relates to his adoption, provided it does not contain protected information about another person. As amended, it removes the restriction on access to information that would enable the adopted adult to obtain a copy of his birth certificate, so it fits into the overall structure of the provisions on access to specific forms of information. On clause 55, we discussed the release of information that was not protected; on new clauses 7 and 8, we shall discuss the Government's proposals for access to other identifying information, whether it relates to an adult or to a child. 
 Amendment No. 217 would amend clause 61, which provides for a group of powers through regulation. We intend to use those powers to balance the rights of individuals and to regulate the operation of the new duties that the provisions place on adoption agencies and the Registrar-General. The amendment provides for regulations that would allow the payment of a fee for the disclosure of information under clause 58 and in the prescribed circumstances under new clauses 7 and 8. It therefore ensures that the provisions in clause 61 on the payment of fees also relate to the new clauses. 
 Amendment No. 232 makes a consequential change, and is based on changes to clause 133 under new clauses 7 and 8. This minor consequential change provides for the commencement of the Bill. It provides for new clause 7, Disclosing protected information about adults'', and new clause 8, Disclosing protected information about children'', to be commenced by the appropriate Minister for England, the Secretary of State, and for Wales, the National Assembly. That is consistent with the fact that all the clauses in this group—clauses 53 to 62—are to be commenced by the appropriate Minister. The amendment makes the necessary consequential changes to the clause.

Henry Bellingham: I am slightly confused. Will the Minister tell me why the words that amendment No. 232 would insert are in brackets?

Jacqui Smith: I suspect that it has something to do with whether we have already debated and agreed the provision, or something like that—[Laughter.] Apparently, it has to do with the fact that they are the titles that will be given to new clauses 7 and 8, which I
 was just about to come to before I was interrupted by the hon. Gentleman with that crucial point. I hope that he is reassured by my answer.
 New clause 7 provides for the process that an adoption agency must undertake when an application is made for the disclosure of protected information about an adult. As I explained in my letter to the Committee, in the light of our change of approach to the birth records provisions, which we discussed at length, we have reconsidered the provisions for the disclosure of other protected information by adoption agencies to ensure that its disclosure is handled sensitively and in a way that ensures that the views of those who are identified therein are taken into account. 
 We tabled other amendments to give the agency discretion to take into account all the circumstances of the case, including the welfare of the adopted person and any views expressed by the person who would be identified by the disclosure. We will therefore propose that clause 59 should not stand part of the Bill and that subsections (5) and (6) of clause 58 should be omitted, as we set out in amendments Nos. 208 and 207. 
 New clause 7(1) provides that the new provisions will apply where 
a person applies to the appropriate adoption agency for protected information'' 
 none of the information is about a person who is a child at the time of the application.'' 
Subsection (2) provides that 
 The agency is not required to proceed with the application unless it considers it appropriate to do so.'' 
We envisage that it will be possible for that decision to be referred to the independent review mechanism that we have previously discussed. When an agency considers it appropriate to proceed with an application, it will be obliged by subsection (3) to—

Sandra Gidley: May we go back to subsection (2)? I am slightly worried because agencies may take different approaches. How are we to ensure that there is consistency and that information is not withheld unless that is essential?

Jacqui Smith: One of the ways in which we will ensure consistency is by setting out, as we do in new clauses 7 and 8, the conditions for the process of disclosure of information, and by using regulations to prescribe the considerations that adoption agencies might bear in mind at various stages of the process. What is important at the second stage, set out in new clause 7(2), is that the agency has discretion to decide not to continue with the process of identifying consent of the person about whom information is going to be provided where, for example, it is clear that that is an inappropriate approach, or it is vexatious or something like that. As I have suggested, the ability to refer that to an independent review will be another safeguard, ensuring that that decision is not made inappropriately by the agency.
 The next step is that when an agency considers it appropriate to proceed with the application, subsection (3) obliges it to 
take all reasonable steps to obtain the views of any person the information is about as to the disclosure of information about him.'' 
Subsection (4) gives the agency a 
discretion to disclose the information if it considers it appropriate to do so.'' 
That is important because it enables the agency, in the light of particular circumstances or information, or despite the fact that somebody has consented to the disclosure of that information, to use its discretion as to whether disclosure would be appropriate in a given case. Subsection (5) provides that in making a decision under subsection (4) as to whether it is appropriate to disclose the information, 
the agency must consider the welfare of the adopted person'' 
and any views obtained under subsection (3) of a person whom the information is about, any matters that might be prescribed in regulations, and 
all the other circumstances of the case''. 
Under subsection (6) we ensure that the clause does not apply to a request for information under clause 58(2) where, for example, a request is made by an adopted adult for either the information needed to enable him to obtain a certified copy of his birth record, or the information given by an agency to his adopters under new clause 6. Applications by an adopted person for the disclosure of all other protected information fall within the scope of the new clause.

Kevin Brennan: I want to be clear about this. Is it the Minister's view that new clause 7 could be used by birth relatives to attempt to obtain information about an adopted adult, but that that would apply only to adoptions that take place after the Bill is enacted?

Jacqui Smith: I thank my hon. Friend for that intervention. That is the position with respect to all the access to information provisions that relate to the position subsequent to the enactment of the Bill.

Tim Loughton: Why?

Jacqui Smith: I think that we have touched on the matter before. First, it is appropriate when people undertake an adoption that they are clear about the basis—especially in relation to access to information—on which they make that undertaking. They should be clear about what they are entering into. It is appropriate to draw a clear line between past and future adoptions, so that birth and adoptive parents and adopted people can be aware of their rights to access information, people have been informed and adoption agencies have had time to adjust their practices to their new responsibilities. When people enter into a difficult arrangement that is surrounded by emotion, is it not reasonable that they should do so with some certainty about the implications of future access to information about them?

Kevin Brennan: Does my hon. Friend accept that that principle was abandoned 27 years or so ago? Before 1975, adopted people were never given access to identifying information about themselves, but in 1975 the whole basis for adoption and access to information was changed. There is no principle at stake here that was not changed a long time ago.

Jacqui Smith: I was not around then—I was around, but in school, not in Parliament. My understanding is that the discussions that took place then were about the same difficulties that I have identified. Certain provisions were made—we may discuss one of them later. People who had entered into an adoption based on certain information were concerned that that basis would be changed, which is why it was thought necessary to offer people counselling before giving them access to their birth records. It is right that we should make provision for the future. People should be certain about the provisions because they will cover the lifelong nature of their adoption.

Tim Loughton: Whatever the Minister's impressions of what may or may not have been the problems at the time of the previous Act, and however much we try to make things better, the number of adoptions is now hitting 3,000 a year, which may increase, but at their peak in the 1960s, there were, albeit in different circumstances, 20,000 a year. Will she not acknowledge that not making the provisions retrospective will mean that many thousands, if not tens of thousands, of adopted people will lose out in the new arrangements? Those people have been waiting for a change in the law for many years, and they greatly outnumber those who have been adopted since 1976 and those likely to be adopted in the next few years. Those are the people who will feel excluded if the Minister does not alter the terms.

Jacqui Smith: I have made it clear in principle why it may be inappropriate, during an adoption, to change the basis of legislation on which the people concerned undertook it. Retrospective legislation is difficult in various ways. It would certainly be difficult to introduce the new provisions and apply them retrospectively without causing considerable distress. Many birth parents, adoptive parents and adopted people would have to be informed of their rights under the new scheme. That is not necessarily an argument against doing so, but must be considered. The task would be complex and costly, and complicated by the fact that given the poor quality of past record-keeping many individuals would be difficult to trace. For some, it would be a disruptive intrusion years after they had been adopted.
 As we said during this morning's sitting—the hon. Member for East Worthing and Shoreham (Tim Loughton) expressed some sympathy for this view—some people may not even know that they had been adopted. I understand that the present situation is unsatisfactory for many, but the risk is that rejecting the certainty over the position prior to the enactment of this Bill will bring significant problems and cause 
 great distress to people who believed that they understood the access to information basis of their adoption. 
 New clause 8 lays down the position with respect to the disclosure of information about a child, including, but not only, an adopted child. The Government thought it appropriate that the qualifications, hurdles or considerations given to the disclosure of protected information about a child should be different from those for an adult. When the request for information concerns an adopted child, the agency will be obliged to seek the views of the adoptive parents on a request for identifying information. In coming to any decision, the adopted child's welfare would be the paramount consideration. 
 Subsection (2) of new clause 8 provides that the agency is not obliged to proceed with an application for disclosure of information unless it considers it appropriate to do so. Subsection (6) provides that, in deciding whether to proceed with the application, the welfare of the adopted child must be paramount when any of the information involved relates to a person who at the time of the application is an adopted child. In the case of any other child, the agency must have particular regard to his welfare. 
 Under subsection (3), if the agency decides to proceed with the application, when the information relates to a child 
the agency must take all reasonable steps to obtain...the views of any parent or guardian of the child'' 
as to the disclosure of the information. The agency must also obtain 
the views of the child, if the agency considers it appropriate to do so having regard to his age and understanding''. 
In other words, when a child is competent and the agency considers it appropriate, the child's consent should be sought. 
 When the agency decides to proceed with the application, under subsection (4), when the information relates to a person who has attained 18 years at the time of the application, 
the agency must take all reasonable steps to obtain his views as to the disclosure of the information.''

Jonathan Djanogly: This is a technical point. Subsection (1) of the new clause states:
 This section applies where...any of the information is about a person who is a child''. 
Subsection (4) then refers to someone attaining the age of 18 years. Is that compatible?

Jacqui Smith: Subsection (4) is necessary because, if information related to both an adult and a child, the provisions in the new clause would be appropriate. In relation to the gaining of consent from the adult, the provisions are what we want.
 Subsection (5) gives the agency a discretion to 
disclose the information if it considers it appropriate to do so.'' 
That discretion must be exercised with regard to subsections (6) and (7). 
 The new clause relates not only to adopted children but to other children, so it is necessary to lay down the basis on which the interests of an adopted child and a 
 child who was not adopted would need to be considered if they were both covered by the same disclosure of information. 
 Subsection (7) further provides that, in deciding whether to disclose any information, the agency must consider the welfare of the adopted person. When the child is not adopted, paramountcy will apply. That is a similar point to the one on which I responded to the hon. Member for Huntingdon (Mr. Djanogly). 
 Under subsection (8), the clause 
does not apply to a request for information under section 58(2)'', 
which concerns a request made by an adopted adult for the information needed to enable him to obtain a certified copy of his birth record or the information given by an agency to his adopters under new clause 6. 
 New clauses 7 and 8 outline the different processes for disclosing protected information about adults and children and ensure consistency in deciding the appropriateness of such disclosures. That is an improvement, as there has been concern about the lack of consistency resulting from the lack of direction that adoption agencies have been given about the way in which they disclose information. The new clauses also enable consideration to be given to the wishes of people about whom information is to be disclosed. The distinction between the new clauses recognises that some issues are particular to the disclosure of information about a child. 
 With that explanation, I hope that the Committee will feel able to support the provisions.

Tim Loughton: I wish to explore the new clauses further. I am not labouring the point for the sake of it, but it is difficult to follow the Minister. She talks about the effect of the new clauses on clause 58(2) information, but the provisions have been chopped around so much that I do not know what clause 58(2) information entails, and it is difficult to know what is intended.
 A continuity of approach among different agencies is important. Some adoption agencies go out of their way to provide intermediary services, to be as helpful as possible and to provide as much information as they can to enable birth parents and adopted children to re-establish links. However, others—the services may be provided by local authorities or charities—do not. There is an enormous disparity in the level of service, and we must make considerable improvements. 
 The Minister said that agencies had a large degree of discretion not to take matters further when a very inappropriate or vexatious approach was made, but what does that mean? On what basis are vexatious approaches made? We have been told that people who have not been adopted have approached adoption agencies to get information, but what examples are there of that and what are the implications? 
 I did not understand the Minister when she talked about a birth parent making an approach to an agency. The agency would take soundings from the adopted adult, who might make it clear that they did not want to be contacted, but would that be an absolute veto? By saying no, does the adopted adult 
 put an end to any further searches, or could a birth parent still be given information even though the adopted adult had exercised some sort of veto? 
 There is still a great degree of greyness about what happened at the time of the previous Act, to which the hon. Member for Meirionnydd Nant Conwy alluded. In the Minister's detailed understanding—I am not talking just about what happened when she and I were at school—was there really some form of legal arrangement whereby anybody adopted before the enactment of that Act was cut out of any of these processes? Everything that I have read suggests a different story. What is the legal basis for not extending that degree of coverage retrospectively to older adoptions, rather than just getting it right in the future, which I am pleased that we are doing? 
 My key point is that we are considering a substantial number of individuals who were adopted over the past 50 years. Far fewer people have been adopted since the 1976 Act than those who are affected and have lived for many years without being able to make such contact. For many, doing so will be a traumatic experience, and we need to strike a balance, whether by a system of veto or something else. I have mixed views. I have not been convinced by the Minister why such people should be completely left out of the new processes.

Kevin Brennan: I agree that the hon. Gentleman has mixed up views. I am afraid that I appear to have convinced the wrong Front Bencher on some of the issues. For information, I understand that the Labour MP Phillip Whitehead, in giving testimony about his own experiences of adoption, persuaded the House to make the provisions retrospective.

Tim Loughton: I said not that my views were mixed up but that they were mixed; nor do I think that I am the wrong Front Bencher. Indeed, it would have been good earlier if the hon. Gentleman and some of his colleagues had had more influence over their Front Benchers and sorted out some of the discrepancies and confusion.
 When I asked the simple question why, the Minister cited three reasons for not extending the provisions. She said first that it would be too costly. I challenge her to explain why that would be so, as there is of course a fee involved. Many, if not most, birth parents who launch a search are prepared to pay a fee. For those who cannot, there are adoption agencies that are charities. They have, or are prepared to make available, a charitable facility to cover that cost.

Jacqui Smith: The hon. Gentleman has chosen to use the issue of cost as the first of the matters that I raised. I think that I said that it would be costly but that I did not consider that to be the most significant issue.

Tim Loughton: I referred to three reasons. I should be interested to know which is the most significant and which are minor considerations that, if overcome by some of the suggestions that I have made, would no longer be barriers. If cost is not a big bar, that is fine.
 The Minister said secondly that people might be difficult to trace because of the way in which records were kept in the past. If the information is no longer available because the records of certain agencies have not been as good as they might have been, that is the end of the matter. However, in the many cases for which there are records, there is not a problem. Nobody is asking for something that no longer exists. It is a different matter if all proper efforts are made to get hold of the information but people are thwarted by lack of disclosure. 
 The third point—perhaps the Minister thinks that it is the most important, and if so I have a degree of sympathy with her, which is why I said that there should be some balance and why it is crucial that there be a proper, balanced intermediate service provider, making careful judgments—was that such provision might be a disruptive intrusion into people's lives many years after adoption. That might be a legitimate consideration. I am trying to establish what the Minister's objections really are. How thoroughly have the Government looked into the issues? How does she rate them on a scale ranging from completely insurmountable to might be surmountable with discussion and other arrangements? 
 From our correspondence and discussions with people involved in adoption, we know that many have waited years for a system that makes it easier, or possible where it is now impossible, for them to gain information that may re-establish a link between an adopted child and a birth parent. As the evidence produced by Professor Triseliotis and others showed, in the vast majority of cases that opportunity proves extremely welcome. 
 Of course it is right that the paramountcy principle of the interest of the child is the focal point of the Bill. However, many people are involved in adoption other than the adopted children, as there are many birth parents and siblings as well. Again, it may be necessary to revisit these issues on Report or table some new clauses, as the Bill has gaps related to the ability of siblings to make contact. At the moment, there is a distinct lack of intermediary services whereby siblings could meet, and I cannot see how that will be greatly improved by some of the provisions in the Bill. We await the outcome of the consultation process on that as well. Those are my concerns. 
 We welcome the changes that lead on from the change of heart on access to information that we have debated. We will not oppose the clause but, before we can go along with the extent of what the Government suggest, we need to know for sure—as do, more importantly, many thousands of people who have been waiting a long time—why the terms of the Bill cannot be extended retrospectively rather than merely applying to the future. It would be fine if the Government could provide a watertight case for that, having reconsidered what happened in the mid-70s 
 and proven that there was some legal agreement at the time, but up to now such a case has not been made clear. I will need more convincing. The Minister should be far clearer than she has been, not only for my sake, but more importantly for that of the many people who have been involved in the process.

Kevin Brennan: I hope that I have not bored hon. Members by banging on about this subject in Committee and on Second Reading, but I would like to pursue it again a little further, in the spirit of exploration that the Minister described.
 I was interested to hear the hon. Member for East Worthing and Shoreham—perhaps—change position slightly on the issue. Any movement down the road has been passionately opposed from the Conservative Back Benches by the hon. Member for Huntingdon, who talked about the past deal or agreement in the triangle of adoption, which he suggested it would be wrong to destabilise. I respect his sincerity in suggesting that, but it is interesting how those views have changed a little as we have discussed the Bill. 
 New clause 7 is welcome, but it ought to apply retrospectively. I welcome it because it probably is not always helpful to talk about rights, as the Minister rightly said this morning. The new clause provides an opportunity.

Julian Brazier: Does the hon. Gentleman agree that much of the difference between him and my hon. Friend the Member for East Worthing and Shoreham could be met in the middle if new clause 7 were retrospective but new clause 8 were not? One affects adults only, and the other affects children.

Kevin Brennan: It is not my intention to argue that new clause 8 should be retrospective. I am trying to make a special case for new clause 7. I do so because it provides opportunities rather than rights. I want to persuade the Minister that that is what we are trying to do rather than enshrining rights in legislation.
 When the Bill becomes law, the clause will apply to no one. It will have an effect only once adoptions take place after that time. If we are to provide opportunities, we should do so in the spirit of providing equal opportunities. Birth relatives have been my particular concern throughout the Bill and should be given equal opportunities to access services and get hold of information. 
 I emphasise the needs of women whose children were adopted prior to 1975. There was a different cultural setting then, and adoptions were often what we would regard as coerced, with babies almost taken off those women. There were great pressures on women who had babies when they were unmarried to give up their babies for adoption. Those women are a special group because they have been left with a hole in their lives and with a great longing to know what happened to their children. They are now very elderly, and time is running out for them. They would be aided by making new clause 7 retrospective.
 The Minister said that the question of whether adoptions at that time were made on an agreed basis perhaps raised a point of principle, which it would be wrong to breach. However, I do not think that we can talk of a principle, because events in the mid-70s blew the issue wide open for ever. The Government's moves in the mid-1970s retrospectively to change the basis on which adoptions could be considered in England and Wales influenced Commonwealth countries such as Canada, New Zealand and Australia to follow a similar path and to take matters a step further than I suggest. Those countries could provide us with empirical evidence because they have taken the path that I suggest, and without significant problems. That said, I understand the Minister's concern about the impact of such measures on adopted adults. 
 It is, of course, possible that misery will be visited on an adopted adult if the new clause is accepted—I think that that was the Minister's point. However, that is a possible consequence of anything that we do. Burke was mentioned this morning, and I could perhaps mention Jeremy Bentham. Should we not concentrate on the greatest happiness for the greatest number? The utility that we would create by making the new clause retrospective and giving birth parents from an earlier era the opportunity to seek information would far outweigh what all the evidence suggests would be the very small number of cases in which approaches would be unwelcome and where even the knowledge that someone was seeking information might be unwelcome. The happiness—for want of a better expression—that such an approach would create for those birth parents would far outweigh the problems. I am not making that statement blindly; the evidence suggests that it is true. I shall not repeat the statistics that I gave the Committee before Christmas, but they show overwhelmingly that a retrospective provision would be welcome. 
 I appreciate the Minister's point that such a provision would be complicated and costly, although she did not say that cost would be the main problem. The provision may well be complicated, but it may not be as costly as she believes. The fear might be that there will be a flood of applications for information if we were to make the clause retrospective. That would, however, prove my point entirely and show that there was a powerful demand on the part of those affected. We would deny them the opportunity to exercise that demand if we did not make the clause retrospective. This is one of those opportunities that come along once in a generation. We should take it now, because it will be the last opportunity for the generation of people who have suffered this cruel and unusual punishment. To do so would be one way towards righting a historical injustice, particularly against women.

Julian Brazier: The hon. Gentleman makes a powerful case. He will not be offended if I say that it is slightly unfortunate that he referred to Australia and New Zealand, because the academic evidence that we received confirmed what a number of us already knew about those countries. Sadly, in an otherwise very good social system, adoption has tended to fail
 miserably in Australia, and the New Zealand system is modelled on the Australian one. There are very few adoptions there because of too much openness. None the less, the hon. Gentleman has made a powerful point.
 I should like to make two small, detailed points, which could open the way to making new clause 7 retrospective without causing some of the problems hinted at by the Minister. First, I emphasise the point made by my hon. Friend the Member for East Worthing and Shoreham that it should be made abundantly clear that there is no duty where there is no information. We cannot start imposing extra duties on people to struggle to find records that no longer exist. The phraseology must be reasonable. Small, struggling voluntary organisations responsible for adoption must not feel that a huge extra burden has been placed on them. 
 Secondly, I am sure that it is in order for me to refer to a useful conversation that I had at lunch time with some of the parties who take an interest in the Bill. Although I feel that there may be scope for extending new clause 7 retrospectively, I have received a representation from the other side of the argument, from a very articulate adopter, who said that he was sometimes made to feel that it was somehow wicked if his children did not try to make contact with their birth parents. If the measure is to be extended retrospectively, it is important that the regulations make it clear that the consultation of those whom the information concerns, which is set out in a very good subsection of new clause 7, should be carefully conducted and that nobody should be made to feel that it is their duty to contact anybody just because they happen to be a birth relative. 
 With those two caveats, there is a lot to be said for new clause 7. In particular, it applies only to adults, so, in making it retrospective, there is no question of the measure affecting families with children.

Hilton Dawson: I approve of new clause 7. It is carefully drafted and takes a balanced approach to a sensitive subject. It makes it plain that a careful approach is required. First, a person has to apply to an appropriate agency for protected information. The agency is not required to proceed with the application unless it considers it appropriate to do so, but if it does proceed with the application, it must take all reasonable steps'' to obtain the views of any person about whom information is sought; the agency then has another opportunity to review whether it is appropriate to disclose that information. The new clause also makes it clear that the agency must consider above all the welfare of the adopted person, and any other views. It is a well-drafted provision.
 I had assumed that siblings of people who had been adopted would also be able to seek information under the provisions.

Julian Brazier: In thoroughly agreeing with what the hon. Gentleman has said—the new clause is one of the best parts of the Bill—I would like to say that it shows that we can get really important and sensitive detail in the Bill, rather than leaving it to regulation.

Hilton Dawson: The hon. Gentleman makes a fair point.
 I am concerned that the clause applies only to adoptions made under the Bill. A graphic illustration of that fact is that on the day the Bill is enacted and for years afterwards not a single person will be able to benefit, because they will be ineligible to apply for information under the Bill. We are talking only about adoptions made after enactment, and the new clause refers only to adults, so chances are that it could be tens of years, or even longer, before many of those involved in adoptions made under the legislation will be eligible. That is especially true in the light of the appropriate trend towards open adoptions, whereby the number of people who will need to seek information will diminish markedly. 
 Conversely, while this excellent piece of legislation is not being used by anyone, standing on the sidelines will be a large group of people who would like to use it, or even need to use it, but cannot take advantage of it. The other glaring anomaly is that a number of people in that group would be able to benefit from the enlightened approach of some adoption agencies in some parts of the country: they would be able to gain information, but that would be tremendously unfair given that people will be reliant on the good practice that is embodied in the Bill. 
 The evidence given to the Committee by Professor Triseliotis and others is that people will generally benefit from the Bill's provisions. If problems arise, however, the Bill is explicitly weighted in the interests of those who have been adopted. There is little chance that anyone seeking information will be able to obtain it against the wishes of the person who has been adopted. 
 I am disappointed in the clause, because it may not be used to its fullest extent. I stand to be corrected, but it is not even retrospective. It should represent a new opportunity for a particular group of people who have been through a particular process—often in the dim and distant past. Although I support the provision, I hope that my hon. Friend will reflect over the next weeks whether to offer people who are currently denied it access to use the Bill. That would be very much in their human interests and would continue the role adopted by the Government of righting historic wrongs in the care system. 
 Nothing is perfect. We cannot solve everything for everybody, even if we want to. The information will not exist in many cases; in others, acquiring it will be complex and difficult—perhaps too difficult. However, there are people who could benefit tremendously from the Bill. We can do some real good through the new clause by extending it to embrace the group of people who are, as it stands, to be excluded.

Jonathan Djanogly: On several occasions I have given my views about aspects of the Bill being retrospective, including those parts that deal with access to information. I shall not rehearse those arguments again, other than to make one point which came to mind after we last discussed the issue. It relates to statistics, which have often been mentioned. Statistics can only have been collected from people whose records have been accessed and with whom contact has been made. By definition, a 70-year-old who has not been approached by a birth parent and who does not know that he was adopted cannot be included in such statistics. Therefore, to say after they have been approached that people would automatically have had a certain view before they were approached is a non sequitur. That is not necessarily so. Once somebody has been approached, it is more than likely—and wholly understandable—that they will want to make the best of their situation and put the best aspect on it.
 The hon. Member for Romsey (Sandra Gidley) and my hon. Friend the Member for East Worthing and Shoreham made an important point about the scope of delegation in adoption agencies—that is, how they make the decisions regarding access to information. Presumably, agencies delegate decisions in different ways: councils may have a committee policy to determine to whom decisions should be delegated, while non-council adoption agencies may have a policy forum that discusses who will make decisions for them. I wonder whether there has been any standardisation in the past and whether Governments have taken an interest in how decisions are made. It is an issue worth exploring, if that has not yet been done, in terms of guidelines and good practice. 
 I have two other concerns. The first just requires clarification. The Minister said that the clause 12 mechanism—the right of appeal, which will be important in terms of the application of these provisions—will apply to new clause 7. I will be grateful if she confirms that it will apply also to the provisions of new clause 8, which I do not think she mentioned. 
 Finally, if the answer of an adoption agency was Yes, you can have information,'' but one of the people who had been consulted said, No, I don't want that information to be given,'' and the adoption agency took the decision that, in the circumstances, the information should be released, as things stand the individual would have no way to appeal or to stop that decision before the adoption agency released the information, and once the information had been released, an appeal against its release would be meaningless. Will the Minister provide some clarification on that? If a negative view were expressed and the adoption agency were minded to consent to the release of the information, might there be a case for adjudication by the panel?

Meg Munn: I support much of what has been said about the clause by hon. Members on both sides of the Committee, although I have some sympathy with the Minister's view that birth parents may approach an
 agency and the agency may approach an adopted adult at a bad time for that adult, thus causing some disruption and distress. However, we know that the decision by adopted adults to seek out their birth parents is often taken after several years' consideration: for example, people who were adopted in the 60s and early 70s often start to think more about their birth parents when they have their own children. They choose to make the search at the right time for them, but clearly one of the dangers of the provision being retrospective is that the approach may not be made at a good time.
 Having said that, the knowledge that birth parents or siblings are seeking contact and want to pass on information may in itself be important information for the adopted person in reaching a decision about seeking out his or her origins. The fear of rejection by a birth parent is often extremely off-putting to an adopted adult who is deciding whether to search. An adoptive father with whom I placed some children and who had been adopted himself dithered for many years about whether to start a search for fear that his birth mother would not want anything to do with him. 
 For many adopted adults, knowing that people want to contact them—that the circumstances in which they were adopted were not ideal and they were not rejected as babies—can be extremely important in enabling them to take steps to begin a search earlier. Time runs out for some people. There is nothing more heartbreaking for a person seeking contact than to find that his birth parent died perhaps only six months or a year before and that had he taken the step sooner, he might have had some positive contact with his parent.

Kevin Brennan: Does my hon. Friend agree that it can be beneficial if contact is initiated by birth relatives? Research shows that three quarters of non-searching adopted adults do not feel comfortable about asking their adoptive parents about their birth families, so it can be helpful if contact is initiated by the birth family.

Meg Munn: I certainly accept the conclusions of the research to which my hon. Friend refers. That is especially relevant to earlier cases, in which adoptive parents were given the child and told to get on with it and act if the child were their own. They may have done that for years with all good intent, but it can result in adopted children finding it very difficult to search for their birth parents.
 In conclusion, although there are some dangers and difficulties involved in people being contacted at a time that is not appropriate for them, if the process is carried out with the sensitivity embodied in the clause, I feel on balance that the provision should apply to all adults who have been adopted and that it would be a beneficial way in which to proceed.

Jonathan R Shaw: I rise to add my support to those who have spoken in favour of all adults being able to receive information on their birth parents. Of course there are inherent risks, eloquently stated by my hon. Friend the Member for Cardiff, West (Kevin Brennan), but we should grasp the principle and ask ourselves whether we agree that
 information should flow and that adults should be able to make choices. Yes, there are risks, but the arguments are overriding: the flow of information should be allowed so that adults can make decisions on whether they want to hear from their birth parents. People should be able to make those decisions for themselves.
 We have often discussed at what age children should be consulted. The hon. Member for Huntingdon said that children aged two or three should be consulted on whether they want to be adopted. If he agrees with that principle, surely he agrees that 18-year-olds should be able to decide whether they want to hear from their birth parents. Of course, there are complexities, but we should not put the matter in the tray marked too difficult''.

Jacqui Smith: We have an interesting discussion. I am glad that the general consensus is to recognise the benefits of new clauses 7 and 8. Rather than reiterate those benefits, I shall respond to some of the issues raised in the debate.
 The hon. Member for East Worthing and Shoreham was concerned that the new clauses might lead to greater disparity between adoption agencies' approaches. In fact, what the new clauses aim to do—and will succeed in doing, when they are enacted—is provide a much clearer and more structured process than currently exists. That will enhance consistency and provide better and more appropriate safeguards. One intention is to ensure that agencies follow best practice and are as consistent as possible. Agencies will need advice: I do not want to disappoint the hon. Member for Canterbury but, despite the Bill's excellent content, we shall underpin the provisions with regulations and guidance.

Julian Brazier: I know that the Minister enjoys a tease. My point is that one wants to have the cardinal points in the Bill itself, leaving the detail to regulations.

Jacqui Smith: I shall not respond to his initial comment, but I take the hon. Gentleman's point.
 I have a further point to make about discrepancy and disparity. The responses to the adoption White Paper and the problems identified around access to information were related to the fact that current law and regulations give minimal guidance on that important issue, which has led to patchy provision and to some adoption agencies following best practice while others do not. New clauses 7 and 8 will make much clearer what best practice should be, which will get rid of the current disparities. 
 Hon. Members also raised issues about adoption agencies' discretion in their decisions on whether to proceed, as I spelled out when I described the process under new clauses 7 and 8. The adopted person will not have a veto, although his views and welfare are important. The agency would decide whether it was appropriate to disclose, having regard to all the circumstances of the case, the adopted person's welfare and any other prescribed services. There is no absolute veto.

Hilton Dawson: I accept everything that my hon. Friend says about the adopted person having no absolute right of veto, but surely she agrees that it would be extraordinary if an agency went against the wishes of the adopted person and gave information about him to someone else.

Jacqui Smith: My hon. Friend is right that such circumstances would be extraordinary. However, we have not touched the subject of discretion when it is not possible to contact the person to obtain consent or otherwise. Discretion would clearly have to be exercised in such cases. There could be circumstances in which it was considerably in the best interests of the adopted person for information to be passed on about him, despite the fact that he had not consented. I am thinking of information in relation to certain medical issues.
 What is important about the new clauses is that they make significant provision for the consent, wishes and interests of people about whom information is disclosed to be at the centre of the decision. Nevertheless, in some situations it may be important that the adoption agency exercises some discretion.

Julian Brazier: Does not the provision offer an opportunity simply to give an absolute veto in retrospective cases? Would that not be a sensible compromise?

Jacqui Smith: I shall deal with the retrospective issue. My argument relates to the fact that, for a veto to be given, an approach must have been made in a way unlike those detailed at the moment.
 The hon. Member for Huntingdon asked whether, if a person objected to the disclosure of information but the agency considered it appropriate to disclose it, there would be a fait accompli against which there was no appeal, or whether there would still be the right to a review by an independent panel. There would be such a right. When a party objects to the agency's intention to disclose and the agency then decides to do so, the objecting party would have to be informed by the agency of their right to an independent review. 
 Much of the debate on the new clauses has been about the extent to which new clause 7 should be retrospective. I have covered some of the legal disadvantages of retrospective legislation. Many of the arguments made, including those of the hon. Member for East Worthing and Shoreham and, although not in the same words, my hon. Friend the Member for Cardiff, West, have been based on the suggestion that birth relatives were in some way being left out of any opportunity to access information about their adopted children. My hon. Friend the Member for Lancaster and Wyre (Mr. Dawson) said that there would be no benefit for years to come. 
 I consider it unsatisfactory to make legislation retrospective so that it would affect people who entered into an arrangement under a different understanding of the legal position. I draw a distinction between that and what it might nevertheless be possible to do for those who were adopted before the enactment of the Bill. I understand the points that have been made about people's strong 
 desire for more help in getting information about an adopted adult or child and their need to be able to make contact. Perhaps I should outline for the Committee—reiterating part of the discussion that took place before Christmas—how the Bill already enables assistance to be given for making contact and tracing. I hope that I will be able to reassure some hon. Members.

Tim Loughton: I am glad that the Minister is going to do that. However, what was the agreement into which people entered in the past? What were its legal ramifications, if it existed? How many people were affected by it and can we class separately those who entered into an agreement and those who did not or had different treatment? I want to get to the bottom of what happened in the mid-70s because it is such a grey area and I do not think that the Minister has got to the bottom of it herself.

Jacqui Smith: Perhaps I misled the hon. Gentleman in talking about an agreement. I am not talking about a formal agreement. It is reasonable that, when a person undertakes adoption under a certain legislative position, they have some certainty that that position will continue. Making the legislation retrospective would take away the certainty of the legislative basis for their actions enjoyed by people who entered into adoption before the enacting of the Bill.

Hilton Dawson: Surely the people who entered into adoption in the past were birth parents who, if the new clause were made retrospective, would be the very people who would be able to decide whether to make use of it? If not, then they were adoptive parents whose adopted children have long since become adult. I do not understand the Minister's objection.

Jacqui Smith: Yes, that would be so, but although adopted adults would not have made a conscious decision to enter into an agreement, there are such adults—I spoke about them before Christmas—who do not want to be contacted by their birth parents. People are very passionate about that and about the fact that they do not even want intermediary services or to be contacted to be asked whether or not they consent. In the future, such objections will not be open to adults who were adopted after the Bill had been enacted, but taking from people adopted before that point what they considered to be a legal certainty by making the new clause retrospective would be difficult and problematic, even, quite frankly, wrong. That is the problem with making legislation retrospective. Notwithstanding that, I intend to go on to talk about the very many ways in which we can facilitate contact for those people who want it and who were adopted prior to the enactment of the Bill.

Julian Brazier: May I rephrase the second point of the hon. Member for Lancaster and Wyre? I agree with everything that the Minister said about retrospection, but the parties to the contract were two sets of adults. The contract dealt with a child or in some cases a baby. We are now dealing with a new adult who was not
 party to that contract. We could give those who do not want any contact an absolute veto by slightly modifying the retrospective angle of new clause 7, but I cannot see how the principle of non-retrospection could apply to a new adult who was not privy to the original contract, which was made to protect the children in an adoptive relationship, and the adoptive parents and their children. We are talking about new adults who were not part of the original contract; provided that they have a veto, I cannot see the Minister's objection to retrospection.

Jacqui Smith: I have already responded to the point on the veto; contact will be necessary for the veto to be exercised. It would be useful if I continue—some hon. Members might then think more positively about what the Bill would enable us to do.
Mr. Brazier rose—

Jacqui Smith: I have tried four times to continue, but I shall give way once more.

Julian Brazier: The Minister is generous indeed. A brief mention of a constituency case might illustrate the difference that the Minister has touched upon. A constituent of mine with a terrible medical difficulty fell into exactly the category that the Minister has outlined. My constituent was absolutely passionate that she wanted to have nothing to do with her birth parents; she did not want to know who they were. As her Member of Parliament, I had to organise a third-party search to establish a medical fact for her without such contact taking place. If we turn that round the other way, we would have a constituent who falls exactly into the Minister's category. Were an adoption agency to approach that constituent and say We are anxious that you receive some medical information from your birth parents, even though we know that you want nothing to do with them. Would you like us to pass on this file to you?'' surely there could be no objection. She can still refuse to see the file.

Jacqui Smith: I am not sure that that adds much to our discussion. I shall now make progress.

Elfyn Llwyd: The arguments against retrospection are not persuasive. If there were an agreement or contract between those two sets of adults, under the main public policy thrust of the Bill, which is the welcome paramountcy of the interests of the child, the interests of the child would dictate that that information should be disclosed, surely it should override any agreement entered into—
Mr. Shaw rose—

Marion Roe: Order.

Jacqui Smith: I think that my hon. Friend the Member for Chatham and Aylesford (Mr. Shaw) is continuing to point out that no one has argued that new clause 8, as it relates to children, should be retrospective. The argument is about adults.

Elfyn Llwyd: I withdraw that; I am sorry.

Jacqui Smith: I now come to what it is possible to do without retrospection, and to deal with some of the concerns raised by hon. Members. We have already discussed the intermediary services, which are at the heart of some of the points raised today. The adoption support provisions of the Bill, which are an improvement over the March version of the Bill, include a provision to offer adoption support services to a wider group of people than adopted people and their families. As I said before Christmas, the Bill has made possible the future consideration, as part of the framework of adoption support, of the extent to which intermediary services should be made available. It will be possible for those intermediary services to be made available to people adopted prior to enactment of this Bill. We have also argued that we would like to see agencies take a positive and compassionate view of approaches made by birth relatives who wish to trace people from whom they were separated. I believe that I referred to that before Christmas. To ensure some consistency in the process, we produced guidance on the provision of intermediary services, so there is opportunity, subject to the framework and to consultation, for consideration of intermediary services.

Kevin Brennan: I apologise for intervening again on my hon. Friend because I know that she has taken many interventions. I also apologise for not paying tribute to the statement that she made about intermediary services before Christmas. However, if such services become available to birth parents in the case of adoptions that took place before the enactment of the Bill, will those birth parents be able to seek identifying information from the Registrar-General through a current agency and an intermediary service provided by regulation?

Jacqui Smith: I think that I might be coming on to cover that point in relation to the improvements that the Bill will make to the adoption contact register. That register enables an adopted person to register on one list and a birth parent or relative to register on another list and facilitates the linking of the two. Clauses 77 and 78 will extend the existing service so that an adopted person's registration on part 1 may signify either a desire for contact with any relatives, contact with specified relatives or no contact. A birth relative's registration on part 2 may signify a desire for contact, or for no contact, with a specified adopted person. Interestingly, people sometimes state explicitly that they want to register the fact that they do not want to have any contact at all. That further important service will take account of some of the issues raised by my hon. Friend the Member for Sheffield, Heeley (Ms Munn).
 I have made my point on my concern about retrospective legislation. We are discussing a sensitive issue and I believe that the Government have gone a significant way down the track of recognising that sensitivity through what we have said about intermediary services and the improvements to the adoption contact register. We recognise the needs of birth parents to be supported in any approaches that 
 they make, while accepting that it is not possible to have a right for birth parents and a right for adopted adults. At some point, a choice must be made about whose rights are paramount. 
 The hon. Member for East Worthing and Shoreham raised a point about siblings. I can assure him that siblings will be covered, post Bill, by the provisions in new clauses 7 and 8 and, pre Bill, by the intermediary services and adoption support provisions and I think also—I shall correct this if I am wrong—by the adoption contact register. 
 The hon. Member for Huntingdon asked whether the right of referral to independent review covered the provisions of new clause 8. The answer is yes. 
 We have had a wide-ranging discussion. There is a consensus that the Government's new clauses and clause 58 provide a much more coherent structure for the provision of access to information. That fulfils our pledge in the adoption White Paper, and, on that basis, I hope that they will receive the Committee's support. 
 Question put and agreed to. 
 Clause 58, as amended, ordered to stand part of the Bill.

Clause 59 - Disclosing protected etc. information in other circumstances

Question proposed, that the clause stand part of the Bill.

Jacqui Smith: The hon. Member for East Worthing and Shoreham tried to throw me off my stride by not moving an amendment, but he failed.
 The clause should not stand part of the Bill because, as I explained earlier, where the protected information concerns an adult, we intend to go through the process in new clause 7 and where it concerns a child, we shall go through the process in new clause 8.

Henry Bellingham: I want to check that new clauses 7 and 8 will end up as clauses 59 and 60.

Jacqui Smith: The hon. Gentleman is really getting to the heart of the issues this afternoon. The answer is that I do not know—it will depend where the new clauses fit into the Bill. I assure him that he will get to see the amended Bill before Report stage, when it will become clear what numbers the various new clauses have. I am sorry that I cannot provide that information now.
 Question put and negatived.
Clause 59 disagreed to.Clause 60Counselling

Clause 60 - Counselling

Question proposed, That the clause stand part of the Bill.
Tim Loughton: Before we move on, I would be grateful if the Minister could fill in some of the detail. Given the issues that we have just discussed, 
counselling will obviously be important, but how will it be provided? Subsections (1) and (2) start with the words Regulations may require'', subsection (3) begins with the phrase The regulations may authorise'' and subsection (4) begins with the words The regulations may require''. We therefore do not know what will happen. Perhaps she could take the opportunity to tell us.
Mr. Bellingham: I should like more information on the clause. Who will pay for counselling? Will local authorities be provided with extra money? Equally importantly, who will ensure that counselling is carried out to the necessary high standards? Will there be outside inspections or outside control? Will certain standards be laid down? As my hon. Friend the Member for East Worthing and Shoreham said, the regulations may authorise or require, but it is important to know what independent monitoring there will be. Perhaps the Minister could give us some idea of her intentions.
Mr. Djanogly: My questions are very much along the lines of those raised by my hon. Friends. Are we satisfied that existing counselling services will be adequate for the purposes of the Bill? Is it an area that the Government feel needs to be looked at again? Are they conducting a review into the standards of counselling? In terms of funding, is this an area in which they have identified that new moneys are needed?
I see in the explanatory notes that
Where the counselling is to be provided outside the United Kingdom, the adoption agency may require the person who is to receive the counselling to pay a prescribed fee.''
Jacqui Smith: The clause is about ensuring that counselling is provided where necessary. Under current regulations, there are no obligations on adoption agencies to provide counselling to any person seeking access to information within the existing legislative framework. However, counselling is provided where an adopted person seeks access to the information that would enable him to obtain a copy of his birth certificate from the Registrar-General under the Adoption Act 1976. As has been said, individuals adopted before 12 November 1975 are required to see a counsellor before they are given access to the information. Those adopted on or after that date will be informed of the counselling services that are available to them, but counselling is not a precondition to disclosure of the birth record information.
I think that I made it clear in response to a question from my hon. Friend the Member for Lancaster and Wyre that there is nothing in the Bill that makes counselling compulsory subsequent to enactment of the legislation.
Mr. Bellingham: Does the Minister envisage counselling being carried out by social workers from the departments involved, or will it be done by an independent trained counsellor? Most social workers do a great deal of counselling anyway, but it could be said that they are not trained counsellors. They are not, for example, bereavement counsellors. Will she elucidate on that?
Jacqui Smith: Perhaps the hon. Gentleman would be less unsure if he had let me continue to the stage at which I was going to talk about that. I was going to say that counselling is of real value in helping adopted people—especially those whose family history includes distressing events—to come to terms with sensitive information about their backgrounds. The clause makes provision in respect of counselling for individuals seeking information under these clauses who are considering whether to consent or object to the disclosure, and those considering an arrangement for the sharing of identifying information through an agreement made under clause 54(6).
Agencies will be obliged, through regulations, to provide information about the availability of counselling services to those seeking information under these provisions, to any person considering whether to object or consent to the disclosure of information under these provisions and to anyone considering entering into an arrangement to share protected information. The first requirement is to make information available.
Adoption agencies will also be obliged, under regulations, to secure the provision of counselling, where the person wishes to take it up, for people seeking information under these clauses in prescribed circumstances. Adoption agencies—in response to the point made by the hon. Member for North-West Norfolk (Mr. Bellingham)—should be able to arrange for agencies with skilled counsellors to provide specialist advice and help or general counselling on their behalf.
Hon. Members asked about standards. As we have previously discussed, monitoring will be carried out by the National Care Standards Commission, which will be the registration authority for registered adoption societies and adoption support agencies. Monitoring of counselling carried out by local authorities would be part of the performance management and inspection regimes that are in place. In relation to the costs, we have already provided £66.5 million for adoption services in England over three years.
When counselling is carried on outside the United Kingdom, the agency will be able to charge for disclosing information. That may ensure that the counselling is carried out by a counsellor where the person lives, as that would be the appropriate way in which to secure counselling in that case. The clause also provides that the regulations may enable adoption agencies to disclose the information needed by the counselling agency to provide the counselling. Through regulations, we shall be able to deal with the details of how the process will work following 
consultation and require local authorities, registered adoption societies or adoption support agencies to provide that counselling.
I hope that with that further information, hon. Members will feel able to support the clause.
Tim Loughton: Yet again, the £66 million figure has been trumpeted. I wonder whether those people who are going to benefit from it are aware that it will extend to counselling services as well. It seems to be one of the most overspent sums of money in history.
I have one query. Why is there differential treatment for pre and post 1975 people? Why is it felt that counselling for pre-1975 people is absolutely required and compulsory before they can be given the information, whereas it is not as important for someone adopted after that date?
Jacqui Smith: I know that Opposition Members may address this issue under later amendments. They seek to remove the distinctions between persons adopted before and after 1975. That brings us back to the debate that we were having earlier. Hon. Members will know that Parliament introduced that distinction when it passed the Children Act 1975, parts of which were subsequently enshrined in section 51 of the Adoption Act 1976. It was felt most strongly that the introduction of the provisions that allow for the first time an adopted person to be able to apply for information about their birth record should be set in a framework built on support and guidance.
There were many who felt at the time that the state was reneging on its undertaking to the hundreds and thousands of birth parents—mainly mothers—that their son or daughter would never be able to contact them. Parliament decided that it should safeguard those people by ensuring that the information was disclosed to adopted persons by professional staff with experience of the sensitivities that surround adoption and its consequences. Therefore, it was made mandatory for people adopted before 12 November 1975 that they should see a counsellor before they were given the information provided by the Registrar-General. For persons adopted after 12 November 1975, it was decided that they should have the choice as to whether to receive the information direct from the Registrar-General or to attend an interview before proceeding. That is the reason for the distinction.
Mr. Djanogly: I am not exactly sure why there should be a difference. The reason why the hon. Lady gave was a good explanation for why counselling should happen in pre-1975 cases, but I did not understand how it follows that the counselling should be less adequate post-1975.
Jacqui Smith: The issue is not about the adequacy of counselling but whether it is possible to access information with optional counselling. Pre-1975, counselling is compulsory, but post-1975, including in the Bill, counselling is optional although in many cases beneficial and important.
Mr. Bellingham: I have one more question for the Minister, as she did not really answer my question. We would like to have more of a flavour for who the counsellors will be. I am not trying to nitpick, but am keen to find out more detail on that if possible.
Jacqui Smith: I think that I answered the question. The people will depend on the agency. They could be social workers or trained counsellors. Organisations already provide counselling in relation to access to information under current law. There will be a range of people. The important issue is that there should be quality, and I responded previously as to how we would ensure the maintenance and monitoring of quality.
Question put and agreed to. 
 Clause 60 ordered to stand part of the Bill.

Clause 61 - Other provision to be made by regulations

Jacqui Smith: I beg to move amendment No. 212, in page 34, leave out lines 31 to 33.

Marion Roe: With this it will be convenient to take Government amendments Nos. 213 to 216.

Jacqui Smith: The clause provides for a group of powers through regulations that we intend to use to balance the rights of individuals, and to regulate the operation of the new duties for adoption agencies and the Registrar-General. As the Committee has discussed, the Government have changed the original approach that we set out in the Bill in relation to access to birth certificates and any other protected information. The changes are provided for in new clause 7(3) and new clause 8(3) and (4). Clause 61(2)(a) and (b), which provided for regulations to prescribe the circumstances in which a person may object to the disclosure of information about himself, and how he may do so, are therefore no longer needed. They are taken out by amendment No. 212.
 Amendment No. 213 is a consequential amendment to clause 61(2)(c) that omits reference to the manner in which objections to disclosure are to be recorded. Amendment No. 214 omits subsections (2)(d) and (e), which provide for regulations to prescribe under paragraph (d) the circumstances in which objections are to be treated as effective and, under paragraph (e), the circumstances in which a person may be treated as having objected to the disclosure of any information.

Henry Bellingham: I have a technical point. Amendment No. 216 leaves out paragraph (b), which is fair enough. However, amendment No. 212 leaves out lines 31 to 33. Would it not have been easier to have left out paragraphs (a) and (b)?

Jacqui Smith: I assure the hon. Gentleman that, when the Government table amendments, we have in mind not ease but ensuring that we deliver our policy commitments. I assure him that the amendments do so.
 Amendment No. 215 is a consequential amendment that replaces object'' in subsection (3)(a) with give their views as''. The effect is that regulations may require adoption agencies to give prescribed persons prescribed information about their rights, or opportunities to give their views on the disclosure of information under clauses 53 to 62, rather than to object to the disclosure of information under those clauses. Those amendments are consequential on the policy changes that have removed the ability for objections to be made in certain circumstances to the giving of information for access to a birth certificate. They follow on from the decisions that the Committee made earlier. 
 Amendment No. 216 is also consequential and omits subsection (3)(b), which provides that 
 Regulations may require adoption agencies to make enquiries in prescribed circumstances to ascertain whether a person objects to the disclosure of information about him''. 
Once again, as we have removed the statutory ability to make such objection, that particular paragraph is no longer needed. 
 Those are the reasons for the amendments and I hope that the Committee will support them.

Tim Loughton: All that was as plain as mud. I want more clarification. Amendments Nos. 212, 213, 214 and 216 appear to be slashing away at the Bill for the reasons that the Minister outlined. However, I am not clear what the difference is between object'' and give their views as''. Does that amount to a watering down, so that an objection will not be seen as such? Does it amount to a declassification of objections, along the lines of there is no power of veto'', which we discussed earlier? What is the point of changing object'' to give their views as''?

Jonathan Djanogly: I should like to address the same point. In an earlier discussion the Minister said that objections to the disclosure of information would relate to new clause 7 and new clause 8, and could be taken to a clause 12 panel. That being the case, what is objectionable about the use of object''?

Jacqui Smith: I am sure that hon. Members will remember that the problem with access to information was that in the case of birth records it was possible for birth parents to object to information being made available to enable people to access their birth records. As we have discussed today, the changes that the Government have subsequently made mean that new clauses 7 and 8 now spell out that such disclosure cannot be objected to. The adopted person has a right to the information required to access their birth record. Only in exceptional circumstances would the adoption agency refer the matter to the High Court.
 Previously, the references to object'' in the clause related only to access to birth records. All hon. Members have agreed that we should change the provisions on that, and the Government have done so. The effect of that change is to remove the need for the regulations to require clarification of the nature of the objection. It does not undermine the points that I made in response to the earlier debate about how consent will be sought, what the safeguards are around 
 that consent, or the nature of the discretion, such as it is, surrounding decisions following the granting of such consent. The system for all identifying information apart from birth records is now based on the idea of seeking consent. It is therefore no longer appropriate to have parts relating to a capacity to object'', because that no longer appears in the rest of the legislation. 
 Amendment agreed to. 
 Amendments made: No. 213, in page 34, line 34, leave out from 'which' to end of line. 
 No. 214, in page 34, leave out lines 36 to 38. 
 No. 215, in page 34, line 43, leave out 'object' and insert 'give their views as'. 
 No. 216, in page 34, line 45, leave out paragraph (b). 
 No. 217, in page 35, line 14, after '58', insert 
 '[Disclosing protected information about adults] or [Disclosing protected information about children]'. 
 No. 209, in page 35, line 15, leave out 'or 59'.—[Jacqui Smith.]

Jacqui Smith: I beg to move amendment No. 210, in page 35, line 16, leave out from 'person' to 'by' in line 17 and insert
 'who (but for his adoption) would be related to him'.

Marion Roe: With this it will be convenient to take Government amendment No. 229.

Jacqui Smith: The amendments improve the drafting around the definition of relative'' in clause 61, and, consequentially, in clause 78. The word is defined in a circular manner in the Bill. It is defined as
any person (other than an adoptive relative) who is related to the adopted person by blood (including half-blood) or marriage.'' 
The amendments clarify that definition. 
 Amendment No. 210 changes subsection (6), which provides for regulations for the payment of fees to the adoption agency by anybody other than the adopted person in respect of any information disclosed to him about a birth relative. The access to information provisions place new duties on adoption agencies, and it is important that they provide that service at no cost to the adopted person when he is seeking information about a birth relative. 
 There will be an obligation on agencies to take all reasonable steps to seek the views of the person who would be identified. That will require them to engage in research work, to contact individuals, to use the information that they have, and—possibly—to gather more information, if their current records do not enable them to trace that individual. Adoption agencies will also have the discretion to charge a fee to a person, other than an adopted person, who is seeking protected information about a birth relative, to cover only their costs in acting on an application for such information. 
 Amendment No. 229 clarifies the definition of relative'' for the purposes of clause 77. It is intended to assist the Registrar-General in the determination of the criteria used to decide whether to make an entry on part 2 of the adoption contact register. As I have spelled out to the Committee, the Registrar-General is 
 precluded from making an entry on part 2 of the register unless the person is over 18 years of age and the Registrar-General is satisfied that that person is the relative of an adopted person. In determining whether an applicant is a relative of an adopted person, the Registrar-General is bound by the definition in the clause. The amended definition makes it clear that the applicant must be related to the adopted person by blood—including half-blood—or marriage. 
 The intention behind the amendments is to ensure—both in relation to clause 61 and the regulations around fees, and in relation to clause 77 and the situation with respect to the Registrar-General defining a relative for the purposes of the adoption contact register—that the definition of relative is clearly drafted, and that there is no confusion.

Henry Bellingham: I listened carefully to the Minister. However, I feel strongly that nothing could be clearer than
adopted person by blood (including half-blood) or marriage'', 
whereas what we are substituting is 
who (but for his adoption) would be related to him''. 
It seems in some ways slightly insulting to say but for his adoption''. Such people are related, regardless of the adoption. Obviously he or she is related to the adoptive siblings. When a family adopts a child, the adopted child becomes related to the birth children of the adoptive parents, but he will always be related to his true—or birth—siblings. The provision complicates matters and is slightly insulting.

Jacqui Smith: I do not have much more to add to my previous comments. We believe that the proposed drafting is clearer than the previous drafting. The suggestion that it is insulting is silly, dare I say it. On that basis, I am sure that hon. Members will support the amendment.
 Amendment agreed to. 
 Clause 61, as amended, ordered to stand part of the Bill.

Clause 62 - Interpretation

Jacqui Smith: I beg to move amendment No. 218, in page 35, line 23, at end insert
'or to information relating to his adoption'.
 The clause relates to interpretation and provides definitions for this group of sections''. The amendment affects the term appropriate adoption agency'' in subsection (1). The term is used throughout this group of clauses in order to identify the adoption agency to which a person must apply in order to obtain information—either the agency that placed the adopted person for adoption or the agency that keeps information on a person's adoption because the placing agency has since closed down. In the case of a non-agency placement, notice of intention to adopt would have been given to the local authority. The 
 amendment makes it clear that the definition of appropriate adoption agency'' applies to both the adopted himself and to information relating to his adoption. 
 Amendment agreed to.

Jacqui Smith: I beg to move amendment No. 211, in page 35, line 45, after 'fee' insert
'by virtue of section 61(7)'.
 The amendment will restrict the regulations that require the approval of the Chancellor of the Exchequer to those made under clause 61(7). Clause 61(7) provides for the payment of a fee by an adoption agency to the Registrar-General for his disclosure of information on the adoption contact register, which is provided for under clause 61(4). The purpose of seeking the approval of the Chancellor of the Exchequer when a fee is prescribed in regulations is to align the provisions with the chapter 5 provisions under which the Chancellor is required to approve regulations made by the Registrar-General. 
 Under clause 61(6), regulations may provide for adoption agencies to charge a fee to a person other than the adopted person seeking protected information about a birth relative in order to cover only the costs in acting on an application for identifying information. The amendment makes it clear that the approval of the Chancellor of the Exchequer is involved when regulations prescribe that a fee should be paid by the adoption agency to the Registrar-General.

Julian Brazier: I have one question. If I heard the Minister correctly, she said that a fee could be charged—to recover costs—except when the person concerned is the adopted person. Is that correct?

Jacqui Smith: Yes. If I did not say that just now, I said it earlier.

Julian Brazier: That seems a reasonable provision, but in such circumstances, is it not unfair that a fee is still charged by the Registrar-General for providing centrally held information? I am thinking about voluntary adoption agencies that are already struggling. Why should they be charged a fee that cannot be recovered?

Jacqui Smith: The Registrar-General charges individuals a fee. The hon. Gentleman continues to mention the charging of adoption agencies by the Registrar-General, although I understand his point. However, it is necessary to ensure that costs are recovered. The important principle is that adopted people should not be charged for information made available to them. The intricacies of the cost structures of adoption agencies should not be discussed under the amendment or, perhaps, in this Committee. However, I heard the hon. Gentleman's point and I am sure that Treasury Ministers will also hear it.

Julian Brazier: I shall finish my point. Although I should raise the matter during clause stand part rather than debate on the amendment, I imagine that we will hardly have a debate on clause stand part. I am sure that all members of the Committee agree that adopted
 individuals should be exempted from the charges, but it seems unfair that voluntary adoption agencies that are struggling to cover their costs and raise money are charged by the Government for providing information when, for perfectly sound reasons, they cannot recharge that fee to adopted individuals.

Tim Loughton: I should like to emphasise my hon. Friend's points. We want to know more about fees. I do not think that there is a clause under which we will have the opportunity to debate the subject. Other countries operate various registers for free, although we are getting mixed up because we are discussing different registers such as the contact register and the adoption register. Voluntary adoption agencies provide a public service and there is a case for direct Government funding.
 There is a parallel with the recently introduced register—I forget what it is called—for the investigation of people who work with young people.

Jacqui Smith: The Criminal Records Bureau.

Tim Loughton: Indeed. The Government's original intention was to charge a fee to organisations, such as the scouts and guides, for each investigation of a youth worker. That would have placed a great financial burden on voluntary groups that do good work. Opposition Members including myself had to bring a lot of pressure to bear on the Government to change its heart. There is not a world of difference between that and the register that the Committee is considering.

Julian Brazier: May I correct my hon. Friend, albeit by reinforcing his point? We are considering much smaller sums of money, because we are discussing only voluntary agencies, of which there are only 10, and they deal with only a few cases. The sums are tiny compared with the sums involved with the register that he mentioned on which the Government eventually and sensibly gave way.

Tim Loughton: I am sure that that is the case. I think that it was estimated that voluntary adoption agencies subbed the Government to the tune of £3.5 million with their work, which would otherwise have to be done by public bodies. Why must fees be attached to a process that ensures that more children are taken into stable adoptive homes, thereby saving local authorities an enormous amount of money in care homes and social services departments? What sort of fees are we thinking about, and has an estimate been made of the cost, in particular to voluntary adoption agencies?
 What mechanism is there for reviewing the fees, how often will they be put up and will they ever be reduced? Will they reflect just the cost of running the system, or will they cover more than overheads? What happens if the cost of running the register turns out to be less than anticipated and the fees more than outweigh the costs? Would a refund be available to the agencies and would fees in the subsequent year be reduced? We need the answers to those questions and a bit more detail about the fees.

Henry Bellingham: Subsection (2)(a) mentions regulations that
are to be made by the Scottish Ministers'', 
but the Bill's provisions extend only to Scotland and Wales—

Elfyn Llwyd: England and Wales.

Henry Bellingham: Indeed; the provisions extend only to England and Wales except insofar as certain sections will extend to Scotland and Northern Ireland. Will the regulations mentioned in subsection (2)(a) require the Scottish Parliament to pass separate legislation? If so, how will that affect the provisions of Government amendment No. 211?

Jacqui Smith: On the subject of fees, Opposition Members have made the case for voluntary adoption agencies, and I have spelled out the relationships between the adoption agency and the Registrar-General, and the individual—who will not be charged fees—and the adoption agency.
 The Registrar-General is a creation of statute, and the exercise of functions must recover the costs of providing information. Therefore, he must have the power to charge adoption agencies for information. Provided that he has that power, he will be able to exercise discretion about to whom fees may apply. I agree with hon. Gentlemen's points about the important role of voluntary adoption agencies, and I am sure that they will be considered when decisions are made about charges. The Registrar-General does not currently charge adopted people for information, but charges them and birth parents for registration on the contact register. Those fees are £15 and £30 respectively and are subject to review by the Secretary of State. 
 The hon. Member for North-West Norfolk raised a broad question. The crux of it was whether the Scottish Parliament would need to consider separate adoption legislation. The power of Scottish Ministers and the Northern Ireland Department of Health is to make regulations, which are secondary legislation subject to the procedures of the Scottish Parliament and the Northern Ireland Assembly— 
 It being Five o'clock, The Chairman, proceeded, pursuant to Sessional Order D [28 June 2001], and the Order of the Committee [27 November 2001], to put forthwith the Question already proposed from the Chair. 
 Amendment agreed to. 
 The Chairman then proceeded to put forthwith the Questions necessary to dispose of the business to be concluded at that time. 
 Clause 62, as amended, ordered to stand part of the Bill.

Clause 74 - Adopted children register

Amendment made: No. 219 in page 40, line 14, at end insert: 
 ( )The Adopted Children Register is not to be open to public inspection or search''.—[Jacqui Smith.]
 Clause 74, as amended, ordered to stand part of the Bill. 
 Schedule 1 agreed to.

Clause 75 - Searches and copies

Amendments made: No. 220, in page 40, line 34, leave out electronic''. 
 No. 221, in page 40, line 36, leave out from index'' to end of line. 
 No. 222, in page 40, leave out lines 38 to 41 and insert: 
 ( ) But a person is not entitled to have a certified copy of an entry in the Adopted Children Register relating to an adopted person who has not attained the age of 18 years unless the applicant has provided the Registrar General with the prescribed particulars. 
 Prescribed'' means prescribed by regulations made by the Registrar General with the approval of the Chancellor of the Exchequer''.—[Jacqui Smith.]
 Clause 75, as amended, ordered to stand part of the Bill.

Clause 76 - Connections between the register and birth records

Amendments made: No. 223, in page 41, line 11, leave out from must'' to traceable'' and insert make''. 
 No. 224, in page 41, line 15, leave out The index'' and insert: 
Information kept by the Registrar General for the purposes of subsection (1)''.
 No. 225, in page 41, line 15, at end insert: 
 and may only be disclosed in accordance with this section.
 ( ) In relation to a person adopted before the appointed day the court may, in exceptional circumstances, order the Registrar General to give such information to a person''.
 No. 226, in page 41, line 18, leave out from must'' to any'' and insert give the agency'' 
 No. 227, in page 41, line 22, leave out from first the'' to Schedule'' in line 23 and insert appointed day''. 
 No. 228 page 41, line 36, after 'section', insert: 
'appointed day' means the day appointed for the commencement of sections 53 to 62, [Disclosing protected information about adults] and [Disclosing protected information about children]''.—[Jacqui Smith.] 
Clause 76, as amended, ordered to stand part of the Bill. 
 Schedule 2 agreed to. 
 Clause 77 ordered to stand part of the Bill.

Clause 78 - Adoption contact register: supplementary

Amendments made: No. 229, in page 42, line 29, leave out from beginning to by'' and insert: 
who (but for his adoption) would be related to him''.
 No. 230, in page 42, line 32, at end insert: 
or regulations made by virtue of section 61(4)(b)''.—[Jacqui Smith.]
 Clause 78, as amended, ordered to stand part of the Bill. 
 Clause 79 ordered to stand part of the Bill. 
 Further consideration adjourned.—[Jim Fitzpatrick.] 
 Adjourned accordingly at two minutes past Five o'clock till Tuesday 15 January at half-past Ten o'clock.